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SPECIAL CIVIL ACTIONS

Ordinary Civil Actions Special Civil Actions Special Proceedings


A party sues another for the A civil action subject to It is a remedy by which a party
enforcement or protection of a right specific/special rules seeks to establish a status, a right
or the prevention or redress of a or a particular fact
wrong
Governed by the rules for ordinary Ordinary rules apply primarily but Governed by special rules and
civil actions subject to specific rules ordinary rules apply suppletorily
Involves two or more parties Involves two or more parties May involve only one party
Initiated by complaint Some are initiated by complaint Initiated by petition
some by petition
Based on COA Some special civil actions have no Not based on COA (except habeas
COA corpus)

SPECIAL CIVIL ACTIONS INITIATED BY SPECIAL CIVIL ACTIONS INITIATED BY


COMPLAINTS (PIE-F2) PETITIONS (DR. CPM. QC)
1. Partition 1. Declaratory Relief
2. Interpleader 2. Review of Adjudication of COMELEC/COA
3. Expropriation 3. Certiorari
4. Foreclosure of REM 4. Prohibition
5. Forcible Entry and Unlawful Detainer [FEUD] 5. Mandamus
6. Quo Warranto
7. Contempt

SPECIAL CIVIL ACTION VENUE JURISDICTION


1. Partition Location of Real Property or a RTC- incapable of pecuniary
portion thereof; estimation
If Personal Property- Plaintiff’s or
Defendant’s residence
2. Interpleader Plaintiff’s or Defendant’s residence MTC- value of claim or personal
property does NOT exceed P300K or
P400K in Metro Manila
- Real Property: does not
exceed P20K or P50K in
Metro Manila

RTC- if value exceeds the amounts


above or if exclusively within RTC’s
jurisdiction i.e. incapable of
pecuniary estimation such as
specific performance or recovery of
title
3. Expropriation Location of Real Property or a RTC- incapable of pecuniary
portion thereof; estimation
If Personal Property- Plaintiff’s or
Defendant’s residence
4. Foreclosure of REM Location of Real Property or a RTC- incapable of pecuniary
portion thereof; estimation
5. FEUD Location of Property MTC

6. Declaratory Relief Petitioner/Respondent’s residence RTC


7. Certiorari, Prohibition, Mandamus RTC of the place where RTC, CA, SC, Sandiganbayan in aid
RESPONDENT is situated of its appellate jurisdiction
* If petition is filed with CA, SC or
Sandiganbayan- location of
respondent is immaterial
8. Quo Warranto RTC of the place where RTC, CA, SC
RESPONDENT is situated
• If petition is filed with CA,
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SC or Sandiganbayan-
location of respondent is
immaterial
• IF SolGen commenced the
action, should be in RTC-
Manila, or CA, or SC
• Sandiganbayan has
exclusive original jurisdiction
on quo warranto in cases
filed by PCGG
9. Contempt Where court involved is sitting MTC, RTC, CA, SC

I. THE DIFFERENT SPECIAL CIVIL ACTIONS


A. Interpleader (Rule 62)
SECTION 1. When interpleader proper. — Whenever conflicting claims upon the same subject matter are or
may be made against a person who claims no interest whatever in the subject matter, or an interest which in
whole or in part is not disputed by the claimants, he may bring an action against the conflicting claimants to
compel them to interplead and litigate their several claims among themselves.

SECTION 2. Order. — Upon the filing of the complaint, the court shall issue an order requiring the conflicting
claimants to interplead with one another. If the interests of justice so require, the court may direct in such order
that the subject matter be paid or delivered to the court.

SECTION 3. Summons. — Summons shall be served upon the conflicting claimants, together with a copy of the
complaint and order.

SECTION 4. Motion to dismiss. — Within the time for filing an answer, each claimant may file a motion to
dismiss on the ground of impropriety of the interpleader action or on other appropriate grounds specified in Rule
16. The period to file the answer shall be tolled and if the motion is denied, the movant may file his answer within
the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial.

SECTION 5. Answer and other pleadings. —Each claimant shall file his answer setting forth his claim within
fifteen (15) days from service of the summons upon him, serving copy thereof upon each of the other conflicting
claimants who may file their reply thereto as provided by these Rules. If any claimant fails to plead within the time
herein fixed, the court may, on motion, declare him in default and thereafter render judgment barring him from
any claim in respect to the subject matter.

The parties in an interpleader action may file counterclaims, cross-claims, third-party complaints and responsive
pleadings thereto, as provided by these Rules.

SECTION 6. Determination. — After the pleadings of the conflicting claimants have been filed, and pre-trial has
been conducted in accordance with the Rules, the court shall proceed to determine their respective rights and
adjudicate their several claims.

SECTION 7. Docket and other lawful fees, costs and litigation expenses as liens. — The docket and other lawful
fees paid by the party who filed a complaint under this Rule, as well as the costs and litigation expenses, shall
constitute a lien or charge upon the subject matter of the action, unless the court shall order otherwise.

1. Requisites
(1) The plaintiff claims no interest in the subject matter or his claim is not disputed;
(2) There must at least be two (2) or more conflicting claimants;
(3) The parties to be interpleaded must make effective claims; and
(4) The subject matter must be one and the same.

2. Decisional rules
Interpleader was found to be a proper action in an action of a lessee who does not know to whom to pay rentals
due to conflicting claims on the property; (Pagkalinawan v. Rodas, 1948) and in an action by a bank where the
purchaser of a cashier's check claims it was lost and another has presented it for payment. (Mesina v. IAC,
1986). It was however found to be improper in an action where defendants have conflicting claims against the
plaintiff; (Beltran v. PHHC, 1969) and an action where one of the defendants had earlier sued the plaintiff and
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secured a judgment against him which has already become final. The action is barred by laches or unreasonable
delay. (Wack Wack Golf and Country Club, Inc. v. Won, 1976)

3. Procedural peculiarities
 Upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants to
interplead with one another. (Rules of Court, Rule 62, Sec. 2)
 The court may direct in the same order mentioned in the preceding paragraph that the subject matter of the
suit be paid or delivered to the court. (Ibid)
 The summons shall be accompanied by copies of the complaint and order mentioned in No. 1. The
defendants may file a motion to dismiss on the ground of the impropriety of the interpleader action or on
other appropriate grounds specified in Rule 16.
 The defendants shall serve a copy of the answer not only to the plaintiff but also to their co-defendants who
may file their reply thereto.
 The effect of a failure to plead within the prescribed period is that, upon motion, the defendant will be
declared in default and thereafter renders judgment barring him from any claim in respect to the subject
matter. For example: There is a deposit of goods with a depository(warehouseman) and while in custody,
CLAIMANT X appears and claims the goods as his own. Claimant Y also claims the goods. The Warehouse
Receipts Law allows the warehouseman if he doesn’t want to decide for himself who is the proper claimant, to
file a complaint for interpleader.

What happens if one of the defendants, say CLAIMANT Y did not file an answer? Claimant Y will be
declared in default, and chances are the answering defendant (X), will be awarded the possession or
ownership of the property. [This is different in ordinary civil actions, under Rule 9 on partial default, the
non-answering defendant will be declared in default, while the answering defendant will go to trial and if
judgment is rendered in favor of the answering defendant, it will benefit the non-answering defendant.

 There is an additional ground for motion to dismiss founded on IMPROPRIETY OF THE FILING OF THE
COMPLAINT

Continuing with the example above, what if the warehouseman after denying the claim of X, the latter
filed a complaint for replevin against the warehouseman. Can the warehouseman still file a complaint for
interpleader against all the complaints? NO. That will be splitting the COA. The complaint for
interpleader should be set up as a counterclaim in the answer.

RCBC v. Metro Container Corp, GR No. 127913, Sept. 13, 2001- If a property was mortgaged and right has
been consolidated after failure to redeem, interpleader may no longer be filed by the lessee who pretends not to
know to whom payment should be made, because the question in the unlawful detainer suit is limited to the
question of physical or material possession of the premises. The issue of ownership is immaterial and the outcome
of the case cannot in any way affect conflicting claims of ownership the filing of the interpleader suit is founded on
the fact that the lessee did not know to whom payment should be made but due to the judgment ordering it to pay
to the lessor, the reason for the interpleader action ceased. When the judgment became final and executory, the
lessee has no more alternative left but to pay the rentals to the lessor.

B. Declaratory Relief and Similar Remedies (Rule 63)


SECTION 1. Who may file petition. — Any person interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other
governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial
Court to determine any question of construction or validity arising, and for a declaration of his rights or duties
thereunder.

An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to
consolidate ownership under Article 1607 of the Civil Code, may be brought under this Rule.

SECTION 2. Parties. — All persons who have or claim any interest which would be affected by the declaration
shall be made parties; and no declaration shall, except as otherwise provided in these Rules, prejudice in the rights
of persons not parties to the action.

SECTION 3. Notice on Solicitor General. — In any action which involves the validity of a statute, executive order
or regulation, or any other governmental regulation, the Solicitor General shall be notified by the party assailing
the same and shall be entitled to be heard upon such question.
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SECTION 4. Local government ordinances. — In any action involving the validity of a local ordinance, the
corresponding prosecutor or attorney of the local governmental unit involved shall be similarly notified and entitled
to be heard. If such ordinance is alleged to be unconstitutional, the Solicitor General shall be notified and entitled
to be heard.

SECTION 5. Court action discretionary. — Except in actions falling under the second paragraph of section 1 of
this Rule, the court, motu proprio or upon motion, may refuse to exercise the power to declare rights and to
construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave
rise to the action, or in any case where the declaration or construction is not necessary and proper under the
circumstances.

SECTION 6. Conversion into ordinary action. — If before the final termination of the case, a breach or violation
of an instrument, or a statute, executive order or regulation, ordinance, or any other governmental regulation
should take place, the action may thereupon be converted into an ordinary action, and parties allowed to file such
pleadings as may be necessary or proper.

1.Requisites
(1) There must be a justiciable controversy; (Obiles v. Republic [1953])
(2) The controversy must be between persons whose interest is adverse;
(3) The parties must have legal interest in the controversy;
(4) The controversy must be ripe for judicial determination; (Board of Optometry v. Colet, 1996) and
(5) The petition must be filed before there is a breach or violation. (Rules of Court, Rule 63, Sec. 1)

2. Procedural peculiarities
 The petition must be filed before there is a breach of contract or violation of the statute or ordinance.
(ibid)
 Third-party complainant is not allowed. (Commissioner of Customs v. Cloribel, 1977)
 Except in actions for quieting of title, reformation of instrument, and consolidation of ownership in case of
sales, the court action on an action for declaratory relief is discretionary. Thus, the court motu proprio or
upon motion may refuse to exercise the power to declare rights and to construe instruments in any case
where a decision would not terminate the uncertainty or controversy which gave rise to the action or in
any case where the declaration or construction is not necessary under the circumstances. (Rules of Court,
Rule 63, Sec. 5). [Ordinary procedures apply to these three actions, including jurisdiction]
 When a statute, executive order or any government regulation or ordinance is alleged to be
unconstitutional, the Solicitor-General should be notified by the party assailing the same. (Ibid.,Sec. 3)
 If the validity of a local government ordinance is in question, the prosecutor or attorney of the local
government should be notified. (Ibid.,Sec. 4)
 No summons is issued upon filing of the petition. The court is given the discretion to dismiss outright the
petition.
 Like interpleader, there is no COA here
 Rule 39 does not apply because what the court does is only to declare the rights and duties of the parties.
There is no award.

3. Declaratory relief improper in the following cases


(1) to obtain judicial declaration of citizenship; (Singson v. Republic, 1968)
(2) to seek relief on moot questions or to resolve hypothetical, abstract or theoretical questions, or to decide
claims which are uncertain; (Lim v. Republic, 1971)
(3) to resolve political issues or questions; (Dela Llana v. COMELEC, 1977)
(4) to test the correctness or validity of a court decision; (Tanda v. Aldaya, 1956)
(5) to determine hereditary rights; (Edades v. Edades, 1956))
(6) when the petition is based upon the happening of a contingent event;
(7) when the petitioner is not the real party in interest; (Santos v. Aquino, [1953]) and
(8) when administrative remedies have not yet been exhausted. (Ollada v. Central Bank, 1962)

C. Certiorari, Prohibition and Mandamus (Rule 65)

RULE 65 RULE 45
Special Civil Action (Original Action) Mode of Appeal
Subject is interlocutory order Subject is Final Judgment
Question of Jurisdiction Question of Law
Filed w/in 60 days after notice of judgment Filed within 15 days after notice of judgment
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Motion for reconsideration required No MR is required


Does not stay judgment Stays judgment
Party is the court or tribunal, or officer Original parties
May be filed in RTC Filed in SC

SECTION 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof,
copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum
shopping as provided in the paragraph of section 3, Rule 46.

SECTION 2. Petition for prohibition. — When the proceedings of any tribunal, corporation, board, officer or
person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or
any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings in the action or matter specified therein, or
otherwise granting such incidental reliefs as law and justice may require.

The petition shall likewise be accompanied by a certified true copy of the judgment, order or resolution subject
thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-
forum shopping as provided in the third paragraph of section 3, Rule 46.

SECTION 3. Petition for mandamus. — When any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or
station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is
entitled, and there in no other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered commanding the respondent, immediately or at some other specified by the court, to do the
act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner
by reason of the wrongful acts of the respondent.

The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of
section 3, Rule 46.

Sec. 4. When and where to file the petition. The petition shall be filed not later than sixty (60) days from notice of
the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such
motion is required or not, the petition shall be filed not later than sixty (60) days counted from the notice of the
denial of the motion.

If the petition relates to an act or an omission of a municipal trial court or of a corporation, a board, an officer or a
person, it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial area as defined by
the Supreme Court. It may also be filed with the Court of Appeals or with the Sandiganbayan, whether or not the
same is in aid of the courts appellate jurisdiction. If the petition involves an act or an omission of a quasi-judicial
agency, unless otherwise provided by law or these rules, the petition shall be filed with and be cognizable only by
the Court of Appeals.

In election cases involving an act or an omission of a municipal or a regional trial court, the petition shall be filed
exclusively with the Commission on Elections, in aid of its appellate jurisdiction.

SECTION 5. Respondents and costs in certain cases. — When the petition filed relates to the acts or omissions
of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as
private respondent or respondents with such public respondent or respondents, the person or persons interested in
sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend,
both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings,
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and the costs awarded in such proceedings in favor of the petitioner shall be against the private respondents only,
and not against the judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person impleaded as
public respondent or respondents.

Unless otherwise specifically directed by the court where the petition is pending, the public respondents shall not
appear in or file an answer or comment to the petition or any pleading therein. If the case is elevated to a higher
court by either party, the public respondents shall be included therein as nominal parties. However, unless
otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein.

SECTION 6. Order to comment. — If the petition is sufficient in form and substance to justify such process, the
court shall issue an order requiring the respondent or respondents to comment on the petition within ten (10) days
from the receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may
direct, together with a copy of the petition and any annexes thereto.

In petitions for certiorari before the Supreme Court and the Court of Appeals, the provisions if section 2, Rule 56,
shall be observed. Before giving due course thereto, the court may require the respondents to file their comment
to, and not a motion to dismiss, the petition. Thereafter, the court may require the filing of a reply and such other
responsive or other pleadings as it may deem necessary and proper.

Sec. 7. Expediting proceedings; injunctive relief. The court in which the petition is filed may issue orders
expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction
for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the
course of the principal case, unless a temporary restraining order or a writ of preliminary injunction has been
issued, enjoining the public respondent from further proceeding with the case.

The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for
certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or upon
its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an
administrative charge.

Sec. 8. Proceedings after comment is filed. After the comment or other pleadings required by the court are filed,
or the time for the filing thereof has expired, the court may hear the case or require the parties to submit
memoranda. If, after such hearing or filing of memoranda or upon the expiration of the period for filing, the court
finds that the allegations of the petition are true, it shall render judgment for such relief to which the petitioner is
entitled.

However, the court may dismiss the petition if it finds the same patently without merit or prosecuted manifestly for
delay, or if the questions raised therein are too unsubstantial to require consideration. In such event, the court
may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to
subjecting counsel to administrative sanctions under Rules 139 and 139-B of the Rules of Court.

The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary sanctions or measures on erring
lawyers for patently dilatory and unmeritorious Petitions for Certiorari.

SECTION 9. Service and enforcement of order or judgment. — A certified copy of the judgment rendered in
accordance with the last preceding section shall be served upon the court, quasi-judicial agency, tribunal,
corporation, board, officer or person concerned in such manner as the court may direct, and disobedience thereto
shall be punished as contempt. An execution may issue for any damages or costs awarded in accordance with
section 1 of Rule 39.

CERTIORARI
Requisites
A tribunal, board or officer exercises judicial or quasi-judicial function;
a. It or s/he acts without or in excess of jurisdiction or with grave abuse of discretion; and
b. There is no appeal nor plain, speedy and adequate remedy in the ordinary cause of law.
1. Without jurisdiction – absence of a legal power to determine a case.
2. Excess of jurisdiction – the court has jurisdiction but fails to comply with the conditions prescribed for its
exercise. (Leung Ben v. O’Brien, [1918]; Tengco v. Jocson, [1922]
3. Grave abuse of discretion – judicial power is exercised capriciously, arbitrarily or despotically due to passion
or personal hostility. (Filinvest Credit Corporation v. IAC, 1988)
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When not proper


Certiorari is not a proper remedy if appeal is available or it is lost through the fault of the petitioner, (Dillena v. CA,
1988; Velasco Vda. De Caldito v. Segundo, 1982) except:
(1) appeal is not a speedy and adequate remedy; (Saludes v. Pajarillo, [1947])
(2) order is issued without or in excess of jurisdiction; (PNB v. Florendo, 1992)
(3) in consideration of public welfare and for the advancement of public policy; (Jose v. Zulueta, 1961)
(4) order is a patent nullity; (Marcelo v. De Guzman, 1982)
(5) to avoid future litigation; (St. Peter Memorial Park, Inc. v. Campos, Jr., 1975)
(6) to avoid a miscarriage of justice;(Escudero v. Dulay, 1988)
(7) in furtherance of the broader interest of justice and equities. (Marahay v. Melicor, 1990)

Exceptions to requirements before certiorari can be availed of


Before certiorari can be availed of, petitioner should first file a motion for reconsideration of the challenged order,
resolution or decision, (Butuan Bay Wood Export Corporation v. CA, 1980) except in the following cases:
(1) in the interest of justice and public welfare and advancement of public policy; (Jose v. Zulueta)
(2) order was issued without or in excess of jurisdiction; (Philippine Consumers Foundation, Inc. v. National
Telecommunications Commission, 1983)
(3) order is a patent nullity (Aquino v. NLRC, 1993) as when petitioner's right to due process was denied in the
lower court (Bache and Co. (Phil.), Inc. v. Ruiz, 1971) or petitioner has been unlawfully deprived of his right to
appeal; (NEA v. CA 1983)
(4) when relief is extremely urgent, there is no more need to wait for the resolution of a motion for
reconsideration; (Vda. de Sayman v. CA, 1983)
(5) when the questions raised and passed upon in the lower court are the same as those to be passed upon in the
certiorari case; (Peroxide Philippines Corporation v. CA, 1991) and
(6) question is purely of law. (Central Bank v. Cloribel, 1972)

Requirements regarding the extrinsic sufficiency of the petition


(1) it must be verified; (Rules of Court, Rule 65, Sec. 1)
(2) accompanied by a certificate of non-forum shopping; (Ibid.)
(3) accompanied with certified true copy of the judgment, order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent thereto; (Ibid)
(4) proof of service pursuant to Rule 13, Section 1; and
(5) if not filed and served personally, then, it should be accompanied by a written explanation why personal service
was not resorted to. (Rules of Court, Rule 13, Sec. 11)

Decisions
As a general rule, certiorari is not a proper remedy to assail the order of the trial court denying a demurrer to
evidence in a civil case. (Asian Trading Corporation v. CA, 1999) Motion for reconsideration and, in case of denial,
appeal, are the proper remedy.

Prohibition

Requisites
1. There is a controversy
2. respondent is exercising judicial, quasi-judicial or ministerial functions
3. respondent acted without or in excess of jurisdiction or acted with grave abuse of discretion amounting to
lack of jurisdiction
4. There must be no appeal or other plain, speedy and adequate remedy

Mandamus

Requisites
(1) a tribunal, corporation, board, officers or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty arising from an office, trust, or station or unlawfully excludes another from the use or
enjoyment of a right or office to which the plaintiff is entitled; and
(2) there is no other plain, speedy and adequate remedy in the ordinary course of law.
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Decisional rules
 Mandamus is an appropriate remedy to compel a corporation to grant its monthly salaried employees
holiday pay. (Mantrade/FMMC Division Employees and Workers Union v. Bacungan, 1986)
 Mandamus is not proper to compel a school to enroll a student for academic deficiencies because this
involves the exercise by the school of discretion under academic freedom. (UP v. Ayson, 1989)
 Mandamus will not lie against the President or Congress because of the principle that the judiciary is a co-
equal department of the latter. (Suanes v. Chief Accountant of the Senate, 1948, Resolution on the MR)
 Failure to exhaust administrative remedies is generally fatal to an action for mandamus. (Aquino v.
Mariano, 1984) The exception is when the question is purely of law. (One Heart Sporting Club, Inc. v. CA,
1981)
 Although the rules say that its only in mandamus that there could be an award of damages, there can also
be an award in prohibition and certiorari

Peculiarity in Procedure (CPM)


 Court can dismiss outright if not sufficient in form and substance
 No summons is issued to respondents, instead the receipt of order to comment by the respondent is the
time when the court acquires jurisdiction over his/her/its person.
 The respondent must comment within the period fixed in the order, unlike in ordinary rules where it is
provided, (15 days to answer).
 There is no such thing as default when respondent failed to comment. The court will continue to hear
the petition and render judgment thereon despite the absence of comment. This is possible because
usually there are no factual issues involved. The issues delve only on jurisdiction.
 CPM is not limited to interlocutory orders, under Rule 41, there are instances when an order even if final
is not subject to appeal, hence the remedy is Rule 65.

RULE 41. Section 1. xxx No appeal may be taken from:


1. An order denying a petition for relief or any similar motion seeking relief from judgment;
2. An interlocutory order;
3. An order disallowing or dismissing an appeal;
4. An order denying a motion to set aside a judgment by consent, confession or compromise on the
ground of fraud, mistake or duress, or any other ground vitiating consent
5. An order of execution
6. A judgment or final order for or against one or more of several parties or in separate claims,
counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the
court allows an appeal therefrom; and
7. An order dismissing an action without prejudice.
In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil
action as provided in Rule 65.
 There is always a public and private respondent. i.e. when the issue is the award of damages.
 Public respondent is not allowed to defend himself openly. So if the public respondent is the court, the
judge could not file separately his own pleadings, he could not even appeal before the court to defend
the validity of the ordewr/judgment. Everything is left to the private respondent and it is the duty of the
private respondent to defend the validity, propriety of the order or judgment that has been assailed.

CERTIORARI PROHIBITION MANDAMUS


Directed vs. an entity or person Directed vs. an entity or person Directed vs. an entity or person
exercising JUDICIAL/QUASI- exercising JUDICIAL/QUASI- exercising MINISTERIAL function
JUDICIAL function JUDICIAL/MINISTERIAL function
Allegation that respondent acted Allegation that respondent acted Allegation that respondent
W/O or in excess of jurisdiction W/O or in excess of jurisdiction unlawfully neglected a ministerial
OR GRAVE ABUSE of discretion OR GRAVE ABUSE of discretion duty OR excluded another from a
amounting to lack or excess of amounting to lack or excess of right or office
jurisdiction jurisdiction
Purpose: Annul a proceeding For respondent to desist from For respondent to DO the act
further proceeding required and Pay damages
Corrective remedy Preventive and negative remedy Affirmative or Positive remedy
Discretionary acts Discretionary and ministerial acts Ministerial acts
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E.Quo Warranto (Rule 66)


SECTION 1. Action by Government against individuals. — An action for the usurpation of a public office, position
or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines
against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the
forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines without being legally incorporated or
without lawful authority so to act.

SECTION 2. When Solicitor General or public prosecutor must commence action. — The Solicitor General or a
public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has
good reason to believe that any case specified in the preceding sections can be established by proof, must
commence such action.

SECTION 3. When Solicitor General or public prosecutor may commence action with permission of court. — The
Solicitor General or a public prosecutor may, with the permission of the court in which the action is to be
commenced, bring such an action at the request and upon the relation of another person; but in such case the
officer bringing it may first require an indemnity for the expenses and cost of the action in an amount approved by
and to be deposited in the court by the person at whose request and upon whose relation the same is brought.

SECTION 4. When hearing had on application for permission to commence action. — Upon application for
permission to commence such action in accordance with the next preceding section, the court shall direct that
notice be given to the respondent so that he may be heard in opposition thereto; and if permission is granted, the
court shall issue an order to that effect, copies of which shall be served on all interested parties, and the petition
shall then be filed within the period ordered by the court.

SECTION 5. When an individual may commence such an action. — A person claiming to be entitled to a public
office or position usurped or unlawfully held or exercised by the another may bring an action therefor in his own
name.

SECTION 6. Parties and contents of petition against usurpation. — When the action is against a person for
usurping a public office, position or franchise, the petition shall set forth the name of the person who claims to be
entitled thereto, if any, with an averment of his right to the same and that the respondent is unlawfully in
possession thereof. All persons who claim to be entitled to the public office, position or franchise may be made
parties, and their respective rights to such public office, position or franchise determined, in the same action.

SECTION 7. Venue — An action under the preceding six sections can be brought only in the Supreme Court, the
Court of Appeals, or in the Regional Trial Court exercising jurisdiction over the territorial area where the
respondent or any of the respondents resides, but when the Solicitor General commences the action, it may be
brought in a Regional Trial Court in the City of Manila, in the Court of Appeals, or in the Supreme Court.

SECTION 8. Period for pleadings and proceedings may be reduced; action given precedence. — The court may
reduce the period provided by these Rules for filing pleadings and for all other proceedings in the action in order to
secure the most expeditious determination of the matters involved therein consistent with the rights of the parties.
Such action may be given precedence over any other civil matter pending in the court.

SECTION 9. Judgment where usurpation found. — When the respondent is found guilty of usurping, intruding
into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such
respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be,
recover his costs. Such further judgment may be rendered determining the respective rights in and to the public
office, position or franchise of all the parties to the action as justice requires.

SECTION 10. Rights of persons adjudged entitled to public office; delivery of books and papers; damages. — If
judgment be rendered in favor of the person averred in the complaint to be entitled to the office he may, after
taking the oath of office and executing any official bond required by law, take upon himself the execution of the
office, and may immediately thereafter demand of the respondent all the books and papers in the respondent's
custody or control appertaining to the office to which the judgment relates. If the respondent refuses or neglects to
deliver any book or paper pursuant to such demand, he may be punished for contempt as having disobeyed a
HLP©2009-3B Page 10

lawful order of the court. The person adjudged entitled to the office may also bring action against the respondent
to recover the damages sustained by such person by reason of the usurpation.

SECTION 11. Limitations. — Nothing contained in this Rule shall be construed to authorize an action against a
public officer or employee for his ouster from office unless the same be commenced within one (1) year after the
cause of such ouster, or the right of the petitioner to hold such office or position, arose; nor to authorize an action
for damages in accordance with the provisions of the next preceding section unless the same be commenced within
one (1) year after the entry of the judgment establishing the petitioner's right to the office in question.

SECTION 12. Judgment for costs. — In an action brought in accordance with the provisions of this Rule, the court
may render judgment for costs against either the petitioner, the relator, or the respondent, or the person or
persons claiming to be a corporation, or may apportion the costs, as justice requires.

Definition
A quo warranto is a prerogative writ by which the Government can call upon any person to show by what warrant
he holds a public office or exercises a public franchise. (3 Moran 208 [1970])

Quo Warranto as distinguished from election contest


If the dispute is as to the counting of votes or on matters connected with the conduct of the election, quo warranto
is not the proper remedy but an election protest. (Caesar v. Garrido, [1929]) When the dispute is on the
ineligibility of a person sought to be ousted, quo warranto is the proper action. (Fortuno v. Palma, 1987)

Peculiarities of proceedings
 When the Solicitor General or a public prosecutor commences the action at the instance of another person,
leave of court must first be secured.
 The motion for leave must be set for hearing with notice to the respondent so that he may be heard; and
 The court issues the order allowing the filing of the action within the period fixed therein. (So the court here
is given the prerogative to reduce the filing of pleading)
 This is one proceeding which violates the rule on splitting the COA. The petition for quo warranto is designed
for the purpose of determining who between the contestants is entitled to hold an office, either a corporate
office or a public office. Once the court has decide this issue, the law authorizes the winning party to file a
subsequent complaint for recovery of damages arising from the usurpation of office.
 Although no made mention regarding observation of hierarchy of courts unlike in Rule 65, this has to be
applied, according to SC decisions.

FERDINAND TOPACIO vs. ASSOCIATE JUSTICE GREGORY ONG and OFFICE OF SOLICITOR GENERAL Gr.
No. 179895 December 18, 2008

Facts: Ong filed a petititon for correction of an entry in his certificate of birth before the RTC in compliance with
the SC decision in Kilosbayan Foundation v. Ermita on July 3, 2007 enjoining him from accepting appointment to
the position of Associate Justice of Supreme Court until have shown through adversarial proceedings that he is a
natural born citizen.
In the present case, Petitioner Topacio filed a petition for certiorari and prohibition to prevent Ong from
exercising powers, duties and responsibilities as a Sandiganbayan Associate Justice.
On September 5, Topacio filed a letter-complaint praying that the Solicitor General to bring in a quo
warranto proceeding against Ong in the latter’s capacity as an incumbent Sandiganbayan member. Petitioner
invoked par. 1, Sec. 7, Art. VIII of the Constitution and the decision in Kilosbayan Foundation v. Ermita. Ong’s
birth certificate and bar records evidenced his Chinese citizenship. Petitioner avers that Ong should immediately
vacate his post bearing out his status as a naturalized Filipino citizen.
The Solicitor General informed the petitioner that it cannot act favorably on the latter’s request for filing
the quo warranto suit until the resolution of the RTC case is decided by final judgment.
In his answer, Ong contends that in Kilosbayan Foundation v. Ermita, he voluntarily refused to accept the
appointment in the Supreme Court and said decision does not annul his appointment but merely enjoined him from
accepting the post, there being no definite pronouncement that he is not a natural born citizen.
Ong then filed his manifestation and motion to dismiss before the RTC alleging that he was already
recognized as a natural born citizen by a court decision. He attached the said decision in his birth certificate.
Ong further claims that the present petition is devoid of merit, or at the very least, it must await the final
disposition of the RTC case which to him involves a prejudicial issue.
Meanwhile, the solicitor general alleges that the present petition is defectively verified.

Issues: 1) WON the SolGen committed grave abuse of discretion in refusing the filing of quo warranto suit
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2) WON the initiation by the petition for certiorari and prohibition is proper to challenge the title to public
office of Justice Ong
Held: 1) No. There was no grave abuse of discretion in deferring an action on the filing of a quo warranto suit until
after the RTC case has been decided with finality. Rule 66 provides that “an action for usurpation of a public office,
position or franchise may be commenced by a verified petition brought in the name of Republic of the Philippines
against a public officer who does or suffers an act which by the provision of law, constitutes a ground for forfeiture
of his office. The Solgen when upon complaint or otherwise he has good reason to believe that any case specified
in the preceding section can be established by proof must commence such action.
However, the Solgen may suspend or struck down the institution of action for quo warranto where there
are just and valid reasons. He may start the prosecution of the case by filing the appropriate action in court or he
may opt not to file the suit at all. He may do everything within his legal authority but always conformably with the
national interest and the policy of the government on the matter at hand.
The Solgen noticed the folly of re-litigation on the issue of Ong’s citizenship in the quo warranto case
simultaneously with the RTC case. The Solgen merely advised the petitioner to await the outcome of the RTC case.

2) No. SC declared that the proper petition is a quo warranto proceeding, not petition for certiorari and
prohibition for the former action seeks to declare null and void. Petitioner claims that Ong’s appointment as an
Associate Justice of Sandiganbayan is being unconstitutional. The petition professes to be for certiorari and
prohibition but it shows a “quo warranto” aspect of the petition.
As a collateral attack on a public officer’s title, the present petition for certiorari and prohibition must be
dismissed. The title of a public office may be contested directly by no less a quo warranto suit. It cannot be
invoked collaterally even by mandamus or motion to annul the order.
A quo warranto proceeding is the proper legal remedy to determine the title to a contested public office. It
is brought against the person who is alleged to have usurped, intruded into or unlawfully held or exercised the
public office and may be commenced by the Solicitor General as the case may be, or by any person claiming to be
entitled to public office or position usurped or unlawfully held or exercised by another. There must be a clear right
to the contested office.
There was no sufficient proof of a clear franchise to the Office of Associate Justice of Sandiganbayan. The
petitioner conceded to that he was neither entitled to the contested office which warrants the termination of the
suit.
It is the same with rightful authority of a judge in the full exercise of his public function which can not be
questioned by merely private suitor or by any other except in the form especially provided by law. To uphold such
action would encourage every disgruntled citizen to resort to courts causing inculpable mischief and hindrance to
the efficient operation of the governmental machine.
The Court declares that Ong may either be a dejure officer who is deemed legally appointed and whose
term of office has not expired or a de facto officer who enjoys certain rights among which is his title to said office
may not be contested except directly by a quo warranto.

Expropriation (Rule 67)


SECTION 1. The complaint. — The right of eminent domain shall be exercised by the filing of a verified
complaint which shall state with certainty the right and purpose of expropriation, describe the real or personal
property sought to be expropriated, and join as defendants all persons owning or claiming to own, or occupying,
any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. If the
title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied
by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or
certainty specify who are the real owners, averment to that effect may be made in the complaint.

SECTION 2. Entry of plaintiff upon depositing value with authorized government depositary. — Upon the filing
of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to
take or enter upon the possession of the real property involved if he deposits with the authorized government
depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such
bank subject to the orders of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes
the deposit of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to
the authorized government depositary.

If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shall
be promptly fixed by the court.
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After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in
possession of the property involved and promptly submit a report thereof to the court with service of copies to the
parties.
SECTION 3. Defenses and objections. — If a defendant has no objection or defense to the action or the taking
of his property, he may file and serve a notice of appearance and a manifestation to that effect, especially
designating or identifying the property in which he claims to be interested, within the time stated in the summons.
Thereafter, he shall be entitled to notice of all proceedings affecting the same.

If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to
the taking of his property, he shall serve his answer within the time stated in the summons. The answer shall
specifically designate or identify the property in which he claims to have an interest, state the nature and extent of
the interest claimed, and adduce all his objections and defenses to the taking of his property. No counterclaim;
cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading.

A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit
amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of
the issue of just compensation, whether or not a defendant has previously appeared or answered, he may present
evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of
the award.

SECTION 4. Order of expropriation. — If the objections to and the defenses against the right of the plaintiff to
expropriate the property are overruled, or when no party appears to defend as required by this Rule, the court may
issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be
expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to
be determined as of the date of the taking of the property or the filing of the complaint, whichever came first.

A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby.
Such appeal, however, shall not prevent the court from determining the just compensation to be paid.

After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding
except on such terms as the court deems just and equitable.

SECTION 5. Ascertainment of compensation. — Upon the rendition of the order of expropriation, the court shall
appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to
the court the just compensation for the property sought to be taken. The order of appointment shall designate the
time and place of the first session of the hearing to be held by the commissioners and specify the time within which
their report shall be submitted to the court.

Copies of the order shall be served on the parties. Objections to the appointment of any of the commissioners shall
be filed with the court within ten (10) days from service, and shall be resolved within thirty (30) days after all the
commissioners shall have received copies of the objections.

SECTION 6. Proceedings by commissioners. — Before entering upon the performance of their duties, the
commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners,
which oath shall be filed in court with the other proceedings in the case. Evidence may be introduced by either
party before the commissioners who are authorized to administer oaths on hearings before them, and the
commissioners shall, unless the parties consent to the contrary, after due notice to the parties to attend, view and
examine the property sought to be expropriated and its surroundings, and may measure the same, after which
either party may, by himself or counsel, argue the case. The commissioners shall assess the consequential
damages to the property not taken and deduct from such consequential damages the consequential benefits to be
derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the
corporation, or the carrying on of the business of the corporation or person taking the property. But in no case
shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of
the actual value of his property so taken.

SECTION 7. Report by commissioners and judgment thereupon. — The court may order the commissioners to
report when any particular portion of the real estate shall have been passed upon by them, and may render
judgment upon such partial report, and direct the commissioners to proceed with their work as to subsequent
portions of the property sought to be expropriated, and may from time to time so deal with such property. The
commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings
shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with
HLP©2009-3B Page 13

their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty
(60) days from the date the commissioners were notified of their appointment, which time may be extended in the
discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all
interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of
the report, if they so desire. (7a)

SECTION 8. Action upon commissioners' report. — Upon the expiration of the period of ten (10) days referred
to in the preceding section, or even before the expiration of such period but after all the interested parties have
filed their objections to the report or their statement of agreement therewith, the court may, after hearing, accept
the report and render judgment in accordance therewith; or, for cause shown, it may recommit the same to the
commissioners for further report of facts; or it may set aside the report and appoint new commissioners, or it may
accept the report in part and reject it in part; and it may make such order or render such judgment as shall secure
to the plaintiff of the property essential to the exercise of his right of expropriation, and to the defendant just
compensation for the property so taken.

SECTION 9. Uncertain ownership; conflicting claims. — If the ownership of the property taken is uncertain, or
there are conflicting claims to any part thereof, the court may order any sum or sums awarded as compensation
for the property to be paid to the court for the benefit of the person adjudged in the same proceeding to be
entitled thereto. But the judgment shall require the payment of the sum or sums awarded to either the defendant
or the court before the plaintiff can enter upon the property, or retain it for the public use or purpose if entry has
already been made.

SECTION 10. Rights of plaintiff after judgment and payment. — Upon payment by the plaintiff to the defendant
of compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the
property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right
to enter upon the property expropriated and to appropriate it for the public use or purpose defined in the
judgment, or to retain it should he have taken immediate possession thereof under the provisions of section 2
hereof. If the defendant and his counsel absent themselves from the court, or decline to receive the amount
tendered, the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual
payment thereof to the defendant or the person ultimately adjudged entitled thereto.

SECTION 11. Entry not delayed by appeal; effect of reversal. — The right of the plaintiff to enter upon the
property of the defendant and appropriate the same for public use or purpose shall not be delayed by an appeal
from the judgment. But if the appellate court determines that plaintiff has no right of expropriation, judgment shall
be rendered ordering the Regional Trial Court to forthwith enforce the restoration to the defendant of the
possession of the property, and to determine the damages which the defendant sustained and may recover by
reason of the possession taken by the plaintiff.

SECTION 12. Costs, by whom paid. — The fees of the commissioners shall be taxed as a part of the costs of the
proceedings. All costs, except those of rival claimants litigating their claims, shall be paid by the plaintiff, unless an
appeal is taken by the owner of the property and the judgment is affirmed, in which event the costs of the appeal
shall be paid by the owner.

SECTION 13. Recording judgment, and its effect. — The judgment entered in expropriation proceedings shall
state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature
of the public use or purpose for which it is expropriated. When real estate is expropriated, a certified copy of such
judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its effect
shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose.

SECTION 14. Power of guardian in such proceedings. — The guardian or guardian ad litem of a minor or person
judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his
ward any act, matter, or thing respecting the expropriation for public use or purpose of property belonging to such
minor or person judicially declared to be incompetent, which such minor or person judicially declared to be
incompetent could do in such proceedings if he were of age or competent.

 Expropriation is a special civil action which implements the right of eminent domain

Requisites for exercise of right


(1) due process of law – compliance with the rules set down (Rule 67);
(2) payment of just compensation; and
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(3) taking must be for public use. (JM Tuazon and Co., Inc. v. Land Tenure Administration, 1970)

Two stages in expropriation proceedings


 Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of
its exercise in the context of the facts. This stage is terminated by either an order of dismissal of the action or
order of the condemnation declaring that expropriation is proper and legal. These orders are final and
therefore appealable. (Municipality of Biñan v. Garcia, 1989)
 Determination of just compensation This is done with the assistance of not more than three (3)
commissioners. The order fixing just compensation is also final and appealable. (Ibid). Just compensation is to
be determined as of the date of the taking of the propriety or the filing of the complaint, whichever comes
first.
Peculiarity in Proceedings
 Multiple appeals and the period to appeal is 30 days unlike in ordinary civil actions (15 days).
Furthermore, no record on appeal is required.
 Although the procedure is not summary there are prohibited pleadings. (counter-claim, cross-claim
and third party complaint)
 Even if defendant here is declared in default he can still participate in proceedings
 Trial by commissioner is mandatory unlike in ordinary civil actions where it is discretionary
 Even if the defendant accepts money as just compensation from plaintiff, he can still assail the
judgment of court on the propriety of the expropriation.

Moday v. CA, 268 SCRA 586, Inherently possessed by the national legislature the power of eminent domain may
be validly delegated to local governments, other public utilities and public entities

Foreclosure of Real Estate Mortgage (Rule 68)


SECTION 1. Complaint in action for foreclosure. — In an action for the foreclosure of a mortgage or other
encumbrance upon real estate, the complaint shall set forth the date and due execution of the mortgage; its
assignments, if any; the names and residences of the mortgagor and the mortgagee; a description of the
mortgaged property; a statement of the date of the note or other documentary evidence of the obligation secured
by the mortgage, the amount claimed to be unpaid thereon; and the names and residences of all persons having or
claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be
made defendants in the action.

SECTION 2. Judgment on foreclosure for payment or sale. — If upon the trial in such action the court shall find
the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage
debt or obligation, including interest and other charges as approved by the court, and costs, and shall render
judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within
a period of not less than ninety (90) days nor more than one hundred twenty (120) days from the entry of
judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment.

SECTION 3. Sale of mortgage property; effect. — When the defendant, after being directed to do so as provided
in the next preceding section, fails to pay the amount of the judgment within the period specified therein, the
court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and
other regulations governing sales of real estate under execution. Such sale shall not affect the rights of persons
holding prior encumbrances upon the property or a part thereof, and when confirmed by an order of the court, also
upon motion, it shall operate to divest the rights in the property of all the parties to the action and to vest their
rights in the purchaser, subject to such rights of redemption as may be allowed by law.

Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by
law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the
property unless a third party is actually holding the same adversely to the judgment obligor. The said purchaser or
last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure.

SECTION 4. Disposition of proceeds of sale. — The amount realized from the foreclosure sale of the mortgaged
property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when
there shall be any balance or residue, after paying off the mortgage debt due, the same shall be paid to junior
encumbrancers in the order of their priority, to be ascertained by the court, or if there be no such encumbrancers
or there be a balance or residue after payment to them, then to the mortgagor or his duly authorized agent, or to
person entitled to it.
HLP©2009-3B Page 15

SECTION 5. How sale to proceed in case the debt is not all due. — If the debt for which the mortgage or
encumbrance was held is not all due as provided in the judgment, as soon as a sufficient portion of the property
has been sold to pay the total amount and the costs due, the sale shall terminate; and afterwards, as often as
more becomes due for principal or interest and other valid charges, the court may, on motion, order more to be
sold. But if the property cannot be sold in portions without prejudice to the parties, the whole shall be ordered to
be sold in the first instance, and the entire debt and costs shall be paid, if the proceeds of the sale be sufficient
therefor, there being a rebate of interest where such rebate is proper.

SECTION 6. Deficiency judgment. — If upon the sale of any real property as provided in the next preceding
section there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall
render judgment against the defendant for any such balance for which, by the record of the case, he may be
personally liable to the plaintiff, upon which execution may issue immediately if the balance is all due at the time of
the rendition of the judgment; otherwise, the plaintiff shall be entitled to execution at such time as the balance
remaining becomes due under the terms of the original contract, which time shall be stated in the judgment.

SECTION 7. Registration. — A certified copy of the final order of the court confirming the sale shall be
registered in the registry of deeds. If no right of redemption exists, the certificate of title in the name of the
mortgagor shall be cancelled, and a new one issued in the name of the purchaser.

Where a right of redemption exists, the certificate of title in the name of the mortgagor shall not be cancelled, but
the certificate of sale and the order confirming the sale shall be registered and a brief memorandum thereof made
by the registrar of deeds upon the certificate of title. In the event the property is redeemed, the deed of
redemption shall be registered with the registry of deeds, and a brief memorandum thereof shall be made by the
registrar of deeds on said certificate of title.

If the property is not redeemed, the final deed of sale executed by the sheriff in favor of the purchaser at the
foreclosure sale shall be registered with the registry of deeds; whereupon the certificate of title in the name of the
mortgagor shall be cancelled and a new one issued in the name of the purchaser.

SECTION 8. Applicability of other provisions. — The provisions of sections 31, 32 and 34 of Rule 39 shall be
applicable to the judicial foreclosure of real estate mortgages under this Rule insofar as the former are not
inconsistent with or may serve to supplement the provisions of the latter.

Judgment in a foreclosure proceeding


The judgment in a judicial foreclosure proceeding should:
(1) make a finding of the amount due the plaintiff including interest, cost and other charges approved
by the court;
(2) order defendant to pay said amount within a period of not less than ninety (90) days nor more than
one hundred twenty (120) days from entry of judgment; and
(3) if the defendant defaults, the court should order the sale at public auction of the mortgaged
property.

Judicial Foreclosure vs. Extra-Judicial Foreclosure


First has court intervention and there is only equity of redemption and is governed by the Rules of
Court, while second is that there is no court intervention, right of redemption exists and is governed by
Act 3135.

Note: Even if there is no court intervention in extra-judicial foreclosure at the outset, the court will
intervene when it comes to recovery of the possession of property foreclosed, i.e. when he purchased it
in public auction, he needs to file a motion for the issuance of writ of possession.

Distinction between right of redemption and equity of redemption


Equity of Redemption is the right of the defendant mortgagor to extinguish the mortgage and retain ownership of
the property by paying the amount fixed in the decision of the court within ninety (90) to one hundred twenty
(120) days after entry of judgment or even after the foreclosure sale but prior to its confirmation. ( Rules of Court,
Rule 68, Sec. 52; Limpin v. Intermediate Appellate Court, No. L-70987, September 29, 1988) On the other hand,
right of redemption is the right granted to the debtor-mortgagor, his successor-in-interest or any judicial creditor
of said debtor-mortgagor or any person having a lien in the property subsequent to its mortgage or deed of trust
under which the property is sold to redeem the property within one (1) year from the registration of the sheriff’s
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certificate of foreclosure sale. (Rules of Court, Rule 39, Sec. 29; De Castro v. Intermediate Appellate Court, No. L-
73859, September 26, 1988)

Writ of possession in judicial foreclosure


After the foreclosure sale is confirmed, the court, upon motion, may issue a writ of possession to install the buyer
at auction into possession of the property sold.

Deficiency judgment
Some rules on deficiency judgment are:
(1) A motion for deficiency judgment may be made only after the sale and after it becomes known that a
deficiency exists. (Governor of the Philippine Islands v. Torralba Viuda de Santos, [1935])
(2) Deficiency judgment cannot be rendered against a non-resident defendant. (El Banco Español-Filipino v.
Palanca, [1918])
(3) No deficiency judgment may be rendered against the owner who is not a mortgagor and has not assumed
personal liability for the debt. The remedy is an ordinary action against the debtor. (Philippine Trust Co. v. Echaus
Tan Siua, [1929])
(4) If the debtor dies, the deficiency may be filed as a claim against his estate. (Rules of Court, Rule 86, Sec. 7.)
(5) No deficiency judgment allowed under Recto Law Article 1484 NCC.

Under Article 1484 of the New Civil Code, in a contract of sale of personal property the price of which is payable in
installments, the vendor may exercise any of the following REMEDIES:
1. Exact fulfillment of the obligation, should the buyer fail to pay any installment;
2. Cancel the sale, should the buyer’s failure to pay cover two or more installments
3. Foreclose the chattel mortgage on the thing sold, if one has been constituted, should the buyer’s failure to pay
cover two or more installments.

• The remedies have been recognized as alternative, not cumulative, in that the exercise of one would also bar the
exercise of the others. They cannot also be pursued simultaneously. If the seller should foreclose on the mortgage
constituted on the thing sold, he shall have no further action against the purchaser to recover any unpaid balance
of the price. Any agreement to the contrary shall be void.

Peculiarity in Proceedings
 We do not follow BP 129. Just like expropriation the first issue that the court needs to resolve is whether or
not there is a right to foreclose. Hence this is incapable of pecuniary estimation cognizable by RTC.
 There are three stages: a) Determination of right to foreclose; b) foreclosure itself; c) Recovery of
deficiency.
 Having three stages, there may be multiple appeals because there can be three judgments. [It appears
that judicial foreclosure is disadvantageous to the mortgagee, because the period of equity of redemption
is increased because of the pendency of the appeals, hence he has to wait for the entry of final judgment]
 There is a need for a record on appeal here
 The rules themselves tell the petitioner who should be sued in court (those who will be impleaded as
indispensable parties, i.e. debtor, mortgagor.
 In order for the junior encumbrancers or subsequent mortgagees’ right of redemption be lost they should
be impleaded
 In judicial foreclosure it is not enough for the court to say that the debtor is directed to pay his unsettled
account. In addition, the court must give a period of time within which the debtor has to pay the account.
(90-120 days from entry of final judgment)
 Unlike in Rule 39, there is a need to confirm the sale

Partition (Rule 69)


SECTION 1. Complaint in action for partition of real estate. — A person having the right to compel the partition
of real estate may do so as in this Rule, setting forth in his complaint the nature and extent of his title and an
adequate description of the real estate of which partition is demanded and joining as defendants all the other
persons interested in the property.

SECTION 2. Order for partition, and partition by agreement thereunder. — If after the trial the court finds that
the plaintiff has the right thereto, it shall order the partition of the real estate among all the parties in interest.
Thereupon the parties may, if they are able to agree, make the partition among themselves by proper instruments
of conveyance, and the court shall confirm the partition so agreed upon by all the parties, and such partition,
HLP©2009-3B Page 17

together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in
which the property is situated.

A final order decreeing petition and accounting may be appealed by any party aggrieved thereby.

SECTION 3. Commissioners to make partition when parties fail to agree. — If the parties are unable to agree
upon the partition, the court shall appoint not more than three (3) competent and disinterested persons as
commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such
part and proportion of the property as the court shall direct.

SECTION 4. Oath and duties of commissioners. — Before making such partition, the commissioners shall take
and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in
court with the other proceedings in the case. In making the partition, the commissioners shall view and examine
the real estate, after due notice to the parties to attend at such view and examination, and shall hear the parties
as to their preference in the portion of the property to be set apart to them and the comparative value thereof, and
shall set apart the same to the parties in lots or parcels as will be most advantageous and equitable, having due
regard to the improvements, situation and quality of the different parts thereof.

SECTION 5. Assignment or sale of real estate by commissioners. — When it is made to appear to the
commissioners that the real estate, or a portion thereof, cannot be divided without prejudice to the interests of the
parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the
other parties such amounts of the commissioners deem equitable, unless one of the interested parties asks that
the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the
real estate at public sale under such conditions and within such time as the court may determine.

SECTION 6. Report of commissioners; proceedings not binding until confirmed. — The commissioners shall
make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real
estate to one of the parties, or the sale of the same. Upon the filing of such report, the clerk of court shall serve
copies thereof on all the interested parties with notice that they are allowed ten (10) days within which to file
objections to the findings of the report, if they so desire. No proceeding had before or conducted by the
commissioners shall pass the title to the property or bind the parties until the court shall have accepted the report
of the commissioners and rendered judgment thereon.

SECTION 7. Action of the court upon commissioners' report. — Upon the expiration of the period of ten (10)
days referred to in the preceding section, or even before the expiration of such period but after the interested
parties have filed their objections to the report or their statement of agreement therewith, the court may, upon
hearing, accept the report and render judgment in accordance therewith; or, for cause shown, recommit the same
to the commissioners for further report of facts; or set aside the report and appoint new commissioners; or accept
the report in part and reject it in part; and may make such order and render such judgment as shall effectuate a
fair and just partition of the real estate, or of its value, if assigned or sold as above provided, between the several
owners thereof.

SECTION 8. Accounting for rent and profits in action for partition. — In an action for partition in accordance
with this Rule, a party shall recover from another his just share of rents and profits received by such other party
from the real estate in question, and the judgment shall include an allowance for such rents and profits.

SECTION 9. Power of guardian in such proceedings. — The guardian or guardian ad litem of a minor or person
judicially to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any
act, matter, or thing respecting the partition of real estate, which the minor or person judicially declared to be
incompetent could do in partition proceedings if he were of age or competent.

SECTION 10. Costs and expenses to be taxed and collected. — The court shall equitably tax and apportion
between or among the parties the costs and expenses which accrue in the action, including the compensation of
the commissioners, having regard to the interests of the parties and execution may issue therefor as in other
cases.

SECTION 11. The judgment and its effect; copy to be recorded in registry of deeds. — If actual partition of
property is made, the judgment shall state definitely, by metes and bounds and adequate description, the
particular portion of the real estate assigned to each party, and the effect of the judgment shall be to vest in each
party to the action in severalty the portion of the real estate assigned to him. If the whole property is assigned to
one of the parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state
HLP©2009-3B Page 18

the fact of such payment and of the assignment of the real estate to the party making the payment, and the effect
of the judgment shall be to vest in the party making the payment the whole of the real estate free from any
interest on the part of the other parties to the action. If the property is sold and the sale confirmed by the court,
the judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real
estate sold to each purchaser, and the effect of the judgment shall be to vest the real estate in the purchaser or
purchasers making the payment or payments, free from the claims of any of the parties to the action. A certified
copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate
is situated, and the expenses of such recording shall be taxed as part of the costs of the action.

SECTION 12. Neither paramount rights nor amicable partition affected by this Rule. — Nothing in this Rule
contained shall be construed so as to prejudice, defeat, or destroy the right or title of any person claiming the real
estate involved by title under any other person, or by title paramount to the title of the parties among whom the
partition may have been made; nor so as to restrict or prevent persons holding real estate jointly or in common
from making an amicable partition thereof by agreement and suitable instruments of conveyance without recourse
to an action.

SECTION 13. Partition of personal property. — The provisions of this Rule shall apply to partitions of estates
composed of personal property, or of both real and personal property, in so far as the same may be applicable.

Two stages of the action


1. Determination of the propriety of partition. This involves a determination of whether the subject property is
owned in common and whether all the co-owners are made parties in the case. The order may also require an
accounting of rents and profits recovered by the defendant. This order of partition is appealable. (Miranda v.
Court of Appeals, No. L-33007, June 18, 1976) If not appealed, then the parties may partition the common
property in the way they want. If they cannot agree, then the case goes into the second stage. However, the
order of accounting may in the meantime be executed. (De Mesa v. CA, 1994)

2. The actual partitioning of the subject property. This is also a complete proceeding and the order or decision is
appealable.

Prescription of action
Action for partition is unprescriptible for as long as the co-owners expressly or impliedly recognize the co-
ownership. (Civil Code, Art. 494) However, if a co-owner repudiates the co-ownership and makes known such
repudiation to the other co-owners, then partition is no longer a proper remedy of the aggrieved co-owner. S/he
should file an accion reivindicatoria which is prescriptible. (Roque v. IAC, 1988)

Some decisions
 When there was a prior partition, the fact that the share of each co-heir has not been technically described
and the title over the whole lot remains uncancelled does not negate such partition. There can be no partition
again because there is no more common property. (Noceda v. CA, 1999)
 Oral partition of land when the same is fully consummated is valid and binding upon the parties thereto.
(Crucillo v. IAC, 1999)

Peculiarity in Proceedings
 All co-owners must be impleaded, they are indispensable parties, hence when one is left out the judgment
of the court will not become final. Once left out, a co-owner may intervene whether or not there is a judgment
rendered. (Unlike in ordinary civil actions where intervention is allowed only when there is no judgment yet)
 Admits multiple appeals
 Appointment of commissioners is mandatory

Forcible Entry and Unlawful Detainer (Rule 70)


SECTION 1. Who may institute proceedings, and when. — Subject to the provisions of the next succeeding
section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or
stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is
unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract,
express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person,
may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action
in the proper Municipal Trial Court against the person or person unlawfully withholding or depriving of possession,
or any person or persons claiming under them, for the restitution of such possession, together with damages and
costs.
HLP©2009-3B Page 19

SECTION 2. Lessor to proceed against lessee only after demand. — Unless otherwise stipulated, such action by
the lessor shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate
is made upon the lessee, or by serving written notice of such demand upon the person found on the premises, or
by posting such notice on the premises if no person be found thereon, and the lessee fails to comply therewith
after fifteen (15) days in the case of land or five (5) days in the case of buildings.

SECTION 3. Summary procedure. — Except in cases covered by the agricultural tenancy laws or when the law
otherwise expressly provides, all actions for forcible entry and unlawful detainer, irrespective of the amount of
damages or unpaid rentals sought to be recovered, shall be governed by the summary procedure hereunder
provided.

SECTION 4. Pleadings allowed. — The only pleadings allowed to be filed are the complaint, compulsory
counterclaim and cross-claim pleaded in the answer, and the answers thereto. All pleadings shall be verified.

SECTION 5. Action on complaint. — The court may, from an examination of the allegations in the complaint and
such evidence as may be attached thereto, dismiss the case outright on any of the grounds for the dismissal of a
civil action which are apparent therein. If no ground for dismissal is found, it shall forthwith issue summons.

SECTION 6. Answer. — Within ten (10) days from service of summons, the defendant shall file his answer to
the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall
be deemed waived, except lack of jurisdiction over the subject matter. Cross-claims and compulsory counterclaims
not asserted in the answer shall be considered barred. The answer to counterclaims or cross-claims shall be served
and filed within ten (10) days from service of the answer in which they are pleaded.

SECTION 7. Effect of failure on answer. — Should the defendant fail to answer the complaint within the period
above provided, the court motu proprio or on motion of the plaintiff, shall render judgment as may be warranted
by the facts alleged in the complaint and limited to what is prayed for therein. The court may in its discretion
reduce the amount of damages and attorney's fees claimed for being excessive or otherwise unconscionable,
without prejudice to the applicability of section 3 (c), Rule 9 if there are two or more defendants.

SECTION 8. Preliminary conference; appearance of parties. — Not later than thirty (30) days after the last
answer is filed, a preliminary conference shall be held. The provisions of Rule 18 on pre-trial shall be applicable to
the preliminary conference unless inconsistent with the provisions of this Rule.

The failure of the plaintiff to appear in the preliminary conference shall be cause for the dismissal of his complaint.
The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in
accordance with the next preceding section. All cross-claims shall be dismissed. (7, RSP)

If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in accordance with the
next preceding section. This procedure shall not apply where one of two or more defendants sued under a common
cause of action who had pleaded a common defense shall appear at the preliminary conference.

No postponement of the preliminary conference shall be granted except for highly meritorious grounds and without
prejudice to such sanctions as the court in the exercise of sound discretion may impose on the movant.

SECTION 9. Record of preliminary conference. — Within five (5) days after the termination of the preliminary
conference, the court shall issue an order stating the matters taken up therein, including but not limited to:
1. Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;
2. The stipulations or admissions entered into by the parties;
3. Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may
be rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty
(30) days from issuance of the order;
4. A clear specification of material facts which remain controverted; and
5. Such other matters intended to expedite the disposition of the case.

SECTION 10. Submission of affidavits and position papers. — Within ten (10) days from receipt of the order
mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses and other
evidence on the factual issues defined in the order, together with their position papers setting forth the law and the
facts relied upon by them.
HLP©2009-3B Page 20

SECTION 11. Period for rendition of judgment. — Within thirty (30) days after receipt of the affidavits and
position papers, or the expiration of the period for filing the same, the court shall render judgment.

However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an
order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the
said matters within ten (10) days from receipt of said order. Judgment shall be rendered within fifteen (15) days
after the receipt of the last affidavit or the expiration of the period for filing the same.

The court shall not resort to the foregoing procedure just to gain time for the rendition of the judgment.

SECTION 12. Referral for conciliation. — Cases requiring referral for conciliation, where there is no showing of
compliance with such requirement, shall be dismissed without prejudice, and may be revived only after that
requirement shall have been complied with.

SECTION 13. Prohibited pleadings and motions. — The following petitions, motions, or pleadings shall not be
allowed:

1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to
comply with section 12; (Note: Remedy of defendant is to file an answer alleging the ground as affirmative
defense)
2. Motion for a bill particulars;
3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions.

SECTION 14. Affidavits. — The affidavits required to be submitted under this Rule shall state only facts of direct
personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to
the matters stated therein.

A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action,
and shall be cause to expunge the inadmissible affidavit or portion thereof from the record.

SECTION 15. Preliminary injunction. — The court may grant preliminary injunction, in accordance with the
provisions of Rule 58 hereof, to prevent the defendant from committing further acts of dispossession against the
plaintiff.

A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from
the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of
a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion
within thirty (30) days from the filing thereof.

SECTION 16. Resolving defense of ownership. — When the defendant raises the defense of ownership in his
pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of
ownership shall be resolved only to determine the issue of possession.

SECTION 17. Judgment. — If after trial the court finds that the allegations of the complaint are true, it shall
render judgment in favor of the plaintiff for the restitution of the premises, the sum justly due as arrears of rent or
as reasonable compensation for the use and occupation of the premises, attorney's fees and costs. If it finds that
said allegations are not true, it shall render judgment for the defendant to recover his costs. If a counterclaim is
established, the court shall render judgment for the sum found in arrears from either party and award costs as
justice requires.
HLP©2009-3B Page 21

SECTION 18. Judgment conclusive only on possession; not conclusive in actions involving title or ownership. —
The judgment rendered in an action for forcible entry or detainer shall be conclusive with respect to the possession
only and in no wise bind the title or affect the ownership of the land or building. Such judgment shall not bar an
action between the same parties respecting title to the land or building.

The judgment or final order shall be appealable to the appropriate Regional Trial Court which shall decide the same
on the basis of the entire record of the proceedings had in the court of origin and such memoranda and/or briefs
may be submitted by the parties or required by the Regional Trial Court.

SECTION 19. Immediate execution of judgment; how to stay same. — If judgment is rendered against the
defendant, execution shall issue immediately upon motion, unless an appeal has been perfected and the defendant
to stay execution files a sufficient supersedeas bond, approved by the Municipal Trial Court and executed in favor
of the plaintiff to pay the rents, damages, and accruing down to the time of the judgment appealed from, and
unless, during the pendency of the appeal, he deposits with the appellate court the amount of rent due from time
to time under the contract, if any, as determined by the judgment of the Municipal Trial Court. In the absence of a
contract, he shall deposit with the Regional Trial Court the reasonable value of the use and occupation of the
premises for the preceding month or period at the rate determined by the judgment of the lower court on or before
the tenth day of each succeeding month or period. The supersedeas bond shall be transmitted by the Municipal
Trial Court, with the other papers, to the clerk of the Regional Trial Court to which the action is appealed.

All amounts so paid to the appellate court shall be deposited with said court or authorized government depositary
bank, and and shall be held there until the final disposition of the appeal, unless the court, by agreement of the
interested parties, or in the absence of reasonable grounds of opposition to a motion to withdraw, or for justifiable
reasons, shall decree otherwise. Should the defendant fail to make the payments above prescribed from time to
time during the pendency of the appeal, the appellate court, upon motion of the plaintiff, and upon proof of such
failure, shall order the execution of the judgment appealed from with respect to the restoration of possession, but
such execution shall not be a bar to the appeal taking its course until the final disposition thereof on the merits.

After the case is decided by the Regional Trial Court, any money paid to the court by the defendant for purposes
of the stay of execution shall be disposed of in accordance with the provisions of the judgment of the Regional Trial
Court. In any case wherein it appears that the defendant has been deprived of the lawful possession of land or
building pending the appeal by virtue of the execution of the judgment of the Municipal Trial Court damages for
such deprivation of possession and restoration of possession may be allowed the defendant in the judgment of the
Regional Trial Court disposing of the appeal.

SECTION 20. Preliminary mandatory injunction in case of appeal. — Upon motion of the plaintiff, within ten (10)
days from the perfection of the appeal to the Regional Trial Court, the latter may issue a writ of preliminary
mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendant's appeal is
frivolous or dilatory, or that the appeal of the plaintiff is prima facie meritorious.

SECTION 21. Immediate execution on appeal to Court of Appeals or Supreme Court. — The judgment of the
Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further appeal
that may be taken therefrom.

Accion Interdictal Accion Publiciana Accion Reinvindicatoria


Summary Action for recovery of Plenary Action for the recovery of Action for recovery of ownership
physical possession where the real right of possession when the PLUS possession
dispossession has not lasted for dispossession has lasted for more
more than 1 year than 1 year
Jurisdiction: MTC regardless of value RTC: Value exceeds P20K or P50K in RTC: Value exceeds P20K or P50K in
of property Metro Manila Metro Manila
MTC: if does not exceed the above MTC: if does not exceed the above
amounts amounts

Nature of accion interdictal


It is:
(1) a special civil action involving a realty;
(2) subject to the Rules on Summary Procedure;
(3) under the original exclusive jurisdiction of first level courts;
HLP©2009-3B Page 22

(4) nature of the action is determined by the allegation of the complaint and the character of the relief sought;
(Abrin v. Campos, 1991) and
(5) one co-owner may institute the action.

Immediate execution and how to stay it


A decision ejecting the defendant in a forcible entry or unlawful detainer case is immediately executory. But the
judge should not order immediate execution in his decision. (Lu v. Siapno, 2000) There must be notice of the
judgment (Dy v. CA, 1991) and a motion with notice to the adverse party. (Kaw v. Anunciacion)

To stay execution, the defendant should:


(1) perfect his appeal in due time;
(2) files a sufficient supersedeas bond, approved by the Municipal Trial Court; and
(3) during the pendency of the appeal, s/he deposits with the appellate court the amount of rent due from time to
time under the contract, if any, as determined by the judgment of the Municipal Trial Court on or before the tenth
(10th) day of each succeeding month. (Rules of Court, Rule 70, Sec. 19) But upon motion of the plaintiff within ten
(10) days from the perfection of the appeal to the Regional Trial Court, the court may still issue a preliminary
mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendant’s appeal is
frivolous or dilatory, or that the appeal of the plaintiff is prima facie meritorious. (Ibid., Sec. 20)

Note: Filing of supersedeas bond is only when there is a judgment on payment of back rentals. The supersedeas
bond does not cover attorney’s fees. It only covers as have said back rentals and damages. The rules states that
the damages should represent only the reasonable use and occupation of the property but this could also include
liquidated damages if agreed upon by the parties.

FORCIBLE ENTRY UNLAWFUL DETAINER


Possession by defendant is unlawful from the beginning Possession is inceptively lawful but it becomes illegal by
as he acquires possession by force, intimidation, threat, reason of the termination of his right
strategy or stealth
No prior demand is necessary Demand is jurisdictional if the ground is non-payment of
rentals or failure to comply with lease contract
Plaintiff must prove that he was in prior possession No need of prior possession
1 year period reckoned from date of actual entry 1 year period reckoned from date of last demand

Important decisional rules on unlawful detainer


 A covenant to renew a lease contract which makes no provision as to the renewal or extension implies an
extension or renewal upon the same terms as provided in the original lease contract. ( Ledesma v. Javellana,
1983)
 An action for ejectment is not abated by the death of the defendant. (Vda. de Salazar v. Court of Appeals, G.
R. No. 121510, November 23, 1995) The heirs become the substitute defendants. (Cañiza v. CA 1997)
 Where there is a defense of tenancy, there must be a preliminary hearing on the question of tenancy
relations. (Bayog v. Natino, 1996) If there is a prima facie showing of tenancy, the court should dismiss the
case for lack of jurisdiction (jurisdiction belongs to the DARAB). (Baranda v. Padios, 1987)
 The lessee is not permitted to deny the lessor's title. (Rules of Court, Rule 131, Sec. 3 (b); Reyes v. Villaflor,
1961)
 A person who occupies the land of another at the latter's tolerance or permission, without any contract
between them is necessarily bound by an implied promise that he will vacate upon demand, failing which an
action for unlawful detainer may be instituted against him. (Dakudao v. Consolacion, 1983)
 This rule as to tolerance does not hold true in a case where there was forcible entry at the start, but the lawful
possessor did not attempt to oust the intruder for over one (1) year, and only thereafter filed forcible entry suit
following demand to vacate. (Muñoz v. CA, 1992)
 Elsewise stated, the tolerance must be presented right from the start of possession sought to be recovered to
categorize a cause of action as one of unlawful detainer. (Refugia v. CA, 1996)
 Demand upon a tenant may be oral. (Jakihaca v. Aquino, 1990) If demand is made upon the person found on
the premises, it must be done by serving upon him notice of such demand or by posting such notice on the
premises if no person be found thereon. (Rules of Court, Rule 70, Sec. 2)
 When failure to pay rent or comply with the condition of lease is the ground for ejectment, plaintiff should give
two (2) demands:
(1) demand to pay rental or comply with conditions of the lease and if this is not complied with,
(2) demand to vacate within fifteen (15) days in case of land or five (5) days in case of buildings from notice
thereof. The two (2) demands may be embodied in one (1) letter. (Zobel v. Abreu, 1956) Demand to pay or
HLP©2009-3B Page 23

comply makes lessee a deforciant while demand to pay and vacate is a requirement for filing the action for
unlawful detainer.

 When the lease has expired, there is no need of prior demand to vacate. The lessor can immediately file
an action for ejectment. Demand is necessary only when the ground for ejectment is failure to pay rent or comply
with the conditions of the lease. (Co Tiamco v. Diaz, [1946))
 Notice and demand to vacate is, however, required on a lease on a month-to-month period to render
effective the termination of the lease upon the expiration of the month, and prevent an implied renewal of the
lease. (Rivera v. Florendo; Yap v. Cruz, 1992)
 The notice provision is the one given after the expiration of the lease period for the purpose of aborting an
implied renewal of the lease. (Gamboa’s Incorporated v. CA, 1976)

An alternative demand to either renew the expired lease contract at a higher rental rate or vacate is not a
definite demand to vacate and therefore, insufficient basis for the filing of an action for unlawful detainer.
(Penas, Jr. v. CA, 1994)

When there is no definite period for a lease but rental is paid from month to month, then under Article 1687
(Civil Code), the period is fixed which is from month to month. When the lessor gave the lessee a demand to
vacate at the end of the month and he fails to do so, an action for unlawful detainer may be filed against him.
(Crisostomo v. CA, 1982)

Refusal to collect or accept rentals is not a defense. There must be consignation. (Uy v. CA, 1989) Acceptance
of back rentals after demand to vacate does not legitimize possession. (Cursino v. Bautista, 1989) Consignation
must be where Sec. 5(b) provides either in court or in bank, in the name of and with notice to the lessor and not
elsewhere. (Medina v. CA, 1993)
PHARMA INDUSTRIES, INC. v. Pajarillaga, 100 SCRA 339- A deed of sale with right to repurchase was executed
over a parcel of land. When the vendor failed to repurchase the same, title was consolidated in favor of Pharma
Industries. The Court ruled that Pharma Industries acquired possession of the property upon failure of the
vendor a retro to repurchase the same and consequently, the vendor’s right to possess the property had ceased.
In ejectment cases, therefore possession of land does not only mean actual or physical possession or occupation
but also includes the subjection of the thing to the action of one’s will or by the proper acts and legal formalities
established for acquiring such right, such as the execution of a deed of sale over a property.

ISIDRO v. CA, 285 SCRA 34- If a person possesses a parcel of land or building by tolerance of the owner, he is
bound by an implied promise to vacate upon demand; failure of the defendant to vacate, a suit for ejectment is
the proper remedy. His status is analogous to that of a tenant whose contract of lease has already expired. The
unlawful deprivation is counted from the date of the demand to vacate.

FRANCEL REALTY CORP. vs. CA, 252 SCRA 127- Where the ground for ejectment by the subdivision owner is the
alleged non-payment of a buyer on installment of a subdivision lot, the case is covered by P.D. No.957 and the
determination of the question of the rights of the installment buyer is exclusively cognizable by the HLURB.

San Andres v. CA, 265 SCRA 368- In a contract of lease over a parcel of land which was intended to be the
place where a building would be constructed as in fact, the lessee constructed a building, the “no sublease”
provision refers to the land. It does not apply to the building which the lessee constructed on the land. This is
because the term of the lease is for 30 years. The purpose of the lease is for the lessee to have a place on which
to construct a building or a factory. The building could be a tenement house or a factory, either of which could
be for commercial purposes such as for lease. A stipulation that upon the expiration of the contract of lease, the
building constructed by the lessee will become the property of the owner of the land is usual with respect to
commercial buildings, the lessee calculating that the building will bring him income sufficient to cover his
investment besides a fair return. It is thus, unlikely that in entering into the 30-year lease contract, the parties
contemplated imposing restrictions on the lessee’s right of ownership of the building, by prohibiting even the
lease of the building constructed by the lessee. The most natural and the most logical construction of the “no
sublease” provision is that it refers only to the land leased but not to the building or factory which the lessee is
authorized to construct on the land.

Felizardo vs. CA, 233 SCRA 220- Unlike Sec.2 Rule 39, Sec. 19 Rule 70 does not require that good reasons for
the immediate execution of judgment be shown. The judgment is immediately executed as a matter of right to
prevent further damage arising from the loss of possession.
HLP©2009-3B Page 24

De Laureano v. Adil, 72 SCRA 148- If the unlawful detainer judgment does not award rentals, there is no need
to post a supersedeas bond as it is required only when there are rentals in arrears awarded. The attorney’s fees
need not be covered by the superdeas bond.

Felisilda v. Villanueva- The MTC may award moral and exemplary damages to the defendant in an unlawful
detainer case. However, this isn’t true with the plaintiff, since the only damages that can be recovered by him
are the fair rental value or the reasonable compensation for the use and occupation of the real property. Other
damages can be claimed in an ordinary action.

Along the same line, the court cannot render judgment forfeiting the improvements made by the lessee over the
premises in favor of the plaintiff.

Castro, Jr. v. CA, 250 SCRA 661, Uy v. Land Bank of the Philippines, 336 SCRA 419 - The buyer at the
foreclosure sale merely succeeds to the rights and obligations of the pledgor-mortgagor subject to the provisions
of Article 1676 NCC. This article provides that “the purchaser of a piece of land which is under a lease that is not
recorded in the Registry of Property may terminate the lease, save when there is a stipulation to the contrary in
the contract of sale, or when the purchaser knows the existence of the lease.” In short, the buyer at the
foreclosure sale, as a rule, may terminate an unregistered lease except when it knows of the existence of the
lease.

Notes:

1. Under the Rules on Summary Procedure, when defendant is in default the options given to the court when a
defendant is declared in default, (i.e. render judgment right away or require plaintiff to submit evidence) are not
available. In summary procedure, court can render judgment without conducting a trial, based on the VERIFIED
complaint

2. The only rules on evidence not applicable to summary procedure is the rules on examination of witnesses,
since they are only required to submit affidavits, but they are required to state only those within their personal
knowledge.

3. When the case is on appeal to RTC, ordinary rules apply, hence the prohibited pleadings are now allowed

4. According to an SC decision, if the plaintiff files a complaint for unlawful detainer against the defendant and
the defendant files another complaint with RTC for reconveyance of property or for annulment of same or form
quieting title, the RTC cannot stop the inferior court from deciding the case of unlawful detainer, because the
unlawful detainer involves physical possession of property.

5. A decision of RTC as an appellate court in a complaint for unlawful detainer is immediately executory and this
cannot be stopped by appealing to CA or by posting a supersedeas bond or by depositing regularly the monthly
rental with CA. The only way to avoid the immediate execution is to seek from CA a writ of preliminary
injunction.

6. Unlawful detainer is a real action in personam. This is an exception to the rule that a decision in an action
personam is enforceable only against the parties to the case.

Contempt (Rule 71)

SECTION 1. Direct contempt punished summarily. — A person guilty of misbehavior in the presence of or so
near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court,
offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an
affidavit or deposition when lawfully required to do so, may be summarily adjudged in contempt by such court
and punished by a fine not exceeding two thousand pesos or imprisonment not exceeding ten (10) days, or
both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a fine not exceeding two
hundred pesos or imprisonment not exceeding one (1) day, or both, if it be a lower court.
HLP©2009-3B Page 25

SECTION 2. Remedy therefrom. — The person adjudged in direct contempt by any court may not appeal
therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall
be suspended pending resolution of such petition, provided such person files a bond fixed by the court which
rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be
decided against him.

SECTION 3. Indirect contempt to be punished after charge and hearing. — After charge in writing has been
filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the
court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for
indirect contempt:
(a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a
person who, after being dispossessed or ejected from any real property by the judgment or process of any court of
competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the
purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the
person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the process or proceedings of a court not constituting direct
contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of
justice;
(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order
or process of a court held by him.

But nothing in this section shall be so construed as to prevent the court from issuing process to bring the
respondent into court, or from holding him in custody pending such proceedings.

SECTION 4. How proceedings commenced. — Proceedings for indirect contempt may be initiated motu proprio
by the court against which the contempt was committed by an order or any other formal charge requiring the
respondent to show cause why he should not be punished for contempt.

In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting
particulars and certified true copies of documents or papers involved therein, and upon full compliance with the
requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose
out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but
said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the
consolidation of the contempt charge and the principal action for joint hearing and decision.

SECTION 5. Where charge to be filed. — Where the charge for indirect contempt has been committed against a
Regional Trial Court or a court of equivalent or higher rank, or against an officer appointed by it, the charge may
be filed with such court. Where such contempt has been committed against a lower court, the charge may be filed
with the Regional Trial Court of the place in which the lower court is sitting; but the proceedings may also be
instituted in such lower court subject to appeal to the Regional Trial Court of such place in the same manner as
provided in section 11 of this Rule.

SECTION 6. Hearing; release on bail. — If the hearing is not ordered to be had forthwith, the respondent may
be released from custody upon filing a bond, in an amount fixed by the court, for his appearance at the hearing of
the charge. On the day set therefor, the court shall proceed to investigate the charge and consider such comment,
testimony or defense as the respondent may make or offer.

SECTION 7. Punishment for indirect contempt. — If the respondent is adjudged guilty of indirect contempt
committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine not
exceeding thirty thousand pesos or imprisonment not exceeding six (6) months, or both. If he is adjudged guilty of
contempt committed against a lower court, he may be punished by a fine not exceeding five thousand pesos or
imprisonment not exceeding one (1) month, or both. If the contempt consists in the violation of a writ of
injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution
to the party injured by such violation of the property involved or such amount as may be alleged and proved.
HLP©2009-3B Page 26

The writ of execution, as in ordinary civil actions, shall issue for the enforcement of a judgment imposing a fine
unless the court otherwise provides.

SECTION 8. Imprisonment until order obeyed. — When the contempt consists in the refusal or omission to do
an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court
concerned until he performs it.

SECTION 9. Proceeding when party released on bail fails to answer. — When a respondent released on bail fails
to appear upon the day fixed for the hearing, the court may issue another order of arrest or may order the bond
for his appearance to be forfeited and confiscated, or both; and, if the bond be proceeded against, the measure of
damages shall be the extent of the loss or injury sustained by the aggrieved party by reason of the misconduct for
which the contempt charge was prosecuted with the costs of the proceedings, and such recovery shall be for the
benefit of the party injured. But if there is no aggrieved party, the bond shall be liable and disposed of as in
criminal cases.

SECTION 10. Court may release respondent. — The court which issued the order imprisoning a person for
contempt may discharge him from imprisonment when it appears that public interest will not be prejudiced by his
release.

SECTION 11. Review of judgment or final order; bond for stay. — The judgment or final order of a court in a
case of indirect contempt may be appealed to the proper court in criminal cases. But execution of the judgment or
final order shall not be suspended until a bond is filed by the person adjudged in contempt, in an amount fixed by
the court from which the appeal is taken, conditioned that if the appeal be decided against him he will abide by and
perform the judgment or final order.

SECTION 12. Contempt against quasi-judicial entities. — Unless otherwise provided by law, this Rule shall apply
to contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions, or shall
have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to
punish for contempt. The Regional Trial Court of the place wherein the contempt has been committed shall have
jurisdiction over such charges as may be filed therefor.

Concept:
Contempt of court is a defiance of the authority, justice or dignity of the court, such conduct as tends to bring the
authority and administration of the law into disrespect of, to interfere with, or prejudice parties litigant or their
witnesses during litigation. It is defined as a disobedience to the court by setting up an opposition to its authority,
justice and dignity. It signifies not only a willful disregard or disobedience to the court’s order but such conduct as
tends to bring the authority of the court and the administration of law into disrepute or in some manner to impede
the due administration of justice. (Halili v. Court of Industrial Relations, 1985)

1. Two kinds of contempt (Direct and Indirect)

EXAMPLE OF DIRECT CONTEMPT


Calling the judge (or justice) a friggin' a-hole, improper attire, loud ringtones/message tones during hearing,
challenging adverse counsel to a fight in the court's presence, cursing, etc. may be considered direct contempt is
done in the presence of or so near the court.

EXAMPLE OF INDIRECT CONTEMPT


1. Overly provocative or fighting words used in filed pleadings
2. Refusal to vacate premises despite a valid and final court order to do the same
3. Making bomb threats so that court proceedings do not continue
4. Laying land mines around the courthouse to prevent the judges and their staff from doing their jobs
5. Illegally representing oneself as an attorney in court proceedings
6. Not showing up in court despite a duly served subpoena ad testificandum
7. Illegally taking sequestered property subject of a case and in court custody.

What is the difference between direct and indirect contempt?


HLP©2009-3B Page 27

Direct Contempt is committed in the court's presence or so near the court while Indirect Contempt is not
committed within or near the court's presence. It may be done through pleadings, though.

Direct Contempt is punished summarily. This means a judge (or justice) can immediately cite an offending person
in direct contempt and mete out the punishment for it. An offender has to go through due process before being
cited for indirect contempt.

Because it is summary, it cannot be appealed, unlike indirect contempt.

What is the penalty for Direct Contempt?

1. If done before a Regional Trial Court, its equivalent or a higher court (Court of Appeals or Supreme Court), a
maximum fine of P2,000.00 or a maximum prison term of ten days, or a combination of both fine and
imprisonment.

2. If done before courts lower than a Regional Trial Court, a maximum fine of P200.00 or a maximum prison
sentence of 1 day, or again, a combination of both fine and imprisonment.

What is the penalty for Indirect Contempt?

1. If done before a Regional Trial Court, its equivalent or a higher court (Court of Appeals or Supreme Court), a
maximum fine of P30,000.00 or a maximum prison term of six months, or a combination of both fine and
imprisonment.

2. If done before courts lower than a Regional Trial Court, a maximum fine of P5,000.00 or a maximum prison
sentence of one month, or again, a combination of both fine and imprisonment.

If there is disobedience to a temporary restraining order or a writ of preliminary injunction, the penalty also
includes restitution for the damage caused or done.

How about contempt of Congress? Is there such a thing?

Yes. Article 150 of the Revised Penal Code, a person becomes criminally liable for disobeying, without legal excuse,
summons issued by the National Assembly or any of its committees; or refusing, when present (1) to be sworn or
placed under affirmation, or (2) to answer any legal inquiry, or (3) to produce any books, papers, documents, or
records in his possession when required to do so by said bodies in the exercise of their functions.

Accordingly, any of those acts may also constitute contempt of Congress and could be punished as such
independent of criminal prosecution.

How about other agencies like the SEC?


Yes. But charges of indirect contempt must be filed with the regular courts...

2.Two aspects of contempt


(1) Civil Contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the
opposing party therein. (People v. Godoy, 1995)

Note: The incarceration here is indefinite, because it is remedial, preservative or coercive in nature. The
punishment is imposed for the benefit of the complainant or a party to a suit who has been injured. Its object is to
compel the performance of the orders or decrees of the court, which the contemnor refuses to obey although able
to do so. Thus, the contemnor carries the key of his prison in his pocket.

(2) Criminal Contempt is conduct directed against the authority and dignity of a court or of a judge, as in
unlawfully assailing or discrediting the authority and dignity of a court or a judge or in doing a forbidden act. (Ibid )
Note: A criminal contempt proceeding is in the nature of a criminal or quasi-criminal action and, therefore, punitive
in nature. A civil contempt proceeding is remedial and civil in nature.

3. Decisions
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 The violation of a TRO issued by the SEC or any quasi-judicial tribunal is


criminal contempt so that acquittal of the respondents is unappealable. (Yasay v. Recto, 1999)
 A writ of execution issued by a court after five (5) years from entry of final
judgment is void and disobedience thereto does not constitute indirect contempt. (Crucillo v. IAC)
Lipata v. Tutaan, 124 SCRA 877- If the defendant does not comply with a judgment ordering him to vacate and
deliver a property, he cannot be cited for contempt. This is so because the writ of execution being for the delivery
of real property is addressed to the sheriff and not to the defendant.

Flores v. Ruiz, 90 SCRA 428- If the defendant has already been evicted but re-entered the premises, the act is
contemptuous. The mere refusal to vacate is not contemptuous.

Gatchalian v. Arlegui, 75 SCRA 234- If there is a suit to recover a parcel of land but the defendant refused to
reconvey, he cannot be cited for contempt despite the issuance of a writ of possession and the effort of the sheriff
to physically remove him. For the plaintiff to recover the land, he has to file another action.

Nazareno v. Barnes, Canas v. Castigador, 348 SCRA 425- “Written Charge” necessary for commencing
indirect contempt proceedings means either 1)An order requiring the persons to be charged with contempt to show
cause why he should not be punished for contempt, be issued by the court, or 2) A petition for contempt by way of
special civil action under Rule 71 be initiated. The first procedure applies only where the indirect contempt is
committed against a court or judge possessed and clothed with contempt powers. The second, if the contemptuous
act was committed not against a court nor a judicial officer with authority to punish for contemptuous acts.

San Luis v. CA, GR No. 142649, Sept. 13, 2001- Only the court which rendered the order commanding the
doing of a certain act is vested with the right to determine whether or not the order has been complied with, or
whether a sufficient reason has been given for non-compliance, and therefore, whether a contempt has been
committed. It is a well-established rule that the power to determine the existence of contempt of court rests
exclusively with the court contemned. No court is authorized to punish a contempt against another.

4. Necessity of hearing
Previous hearing is required under Rule 71, Section 3 of the Revised Rules of Court, where an arrest and the
subsequent detention of petitioner for her failure to appear at a hearing set by the trial judge is based on the
commission of an indirect contempt. Without that hearing, the order violated the rules and deprived the petitioner
of her liberty without due process. (Bulado v. Navarro, 1988, En Banc, Minute Resolution)

Where a lawyer fails to obey a subpoena and likewise committed direct contempt for having disturbed the
preliminary examination being conducted by the judge by repeatedly driving his jeep and honking its horn in the
vicinity of the court session hall for which the lawyer was ordered arrested and confined in jail, the judge should
issue a separate order for such direct contempt, and another order requiring the lawyer to show cause why he
should not be punished for disobedience to its process, to give the lawyer a chance to explain his failure to appear
as a witness. (Gardones v. Delgado, 1974)

5. Contempt by non-party
Generally, no contempt is committed by one not a party to the case. The remedy against such person is either a
civil or criminal action. (Ayog v. Cusi, Jr., 1982) However, persons who are not parties in a proceeding may be
declared guilty of contempt for willful violation of an order issued in a case if said persons are guilty of conspiracy
with any one of the parties in violating the Court’s order. (Desa Enterprises, Inc. v. Securities and Exchange
Commission, 1982)

6.Power to punish for contempt to be exercised in preservative not vindictive principle; what
constitutes disobedience

Only in cases of clear and contumacious refusal to obey should the power be exercised. A bona fide
misunderstanding of the terms of the order or of the procedural rules should not immediately cause the institution
of contempt proceedings. 'The power to punish for contempt of court should be exercised on the preservative and
not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain the
respect without which the administration of justice must falter or fail. Such power being drastic and extraordinary
in its nature xxx should not be resorted to xxx unless necessary in the interest of justice. (Lipata v. Tutaan, 1983)

Pecularities in Proceedings
 Penalty of imprisonment. Furthermore, it may be indefinite unlike in criminal cases
 Plaintiff or prosecutor of the court are one and the same person (Direct Contempt)
HLP©2009-3B Page 29

 Absence of pleadings
 In indirect contempt, there is an initiatory pleading. There is an order to comment, unlike in ordinary
procedure wherein there is summons
 Remedy for direct contempt is certiorari. SC decisions allows habeas corpus. (SC has ruled that a petition
for certiorari and prayer for writ of habeas corpus may be joined. When it comes to indirect contempt the
only remedy is plain appeal.
 When absolved with contempt, it is equivalent to acquittal, so he cannot be placed in double jeopardy

Notes:
1. Contempt is not a means to enforce judgment in a civil case as a general rule. An exception is, when judgment
directs the performance of an act that is purely personal to the defendant.
2. In an unlawful detainer case, if defendant is ordered to vacate the premises but he refuses to do so, that is not
a ground for citation for contempt. The remedy of the plaintiff is to seek help from the sheriff and the police in
order to throw out physically the defendant from the place. But when the defendant returns despite the successful
eviction and return of property to plaintiff, that is now a ground for citation for contempt. What is contemptuous is
the defendant’s return to the premises after he has been successfully evicted. There is no longer need for another
eviction. What is needed only is an order citing defendant for contempt of court.